Malaysia’s top court rules some Islamic laws in Kelantan unconstitutional

Majority ruling could have major legal implications in multiethnic country that operates a dual judicial system.

Malaysia’s top court has ruled that 16 Islamic laws in the northeastern state of Kelantan are unconstitutional in a landmark decision that could have major implications for the country’s legal system, according to Al Jazeera.

By an 8-1 majority, the Federal Court ruled on February 9 that the Kelantan state government did not have the power to enact the laws, on offences from sodomy to sexual harassment, possession of false information, intoxication and scale measurements, because they were already covered in civil law and were the responsibility of the federal parliament.

Malaysia is a federal country where states have jurisdiction over laws related to Islam, the official religion. It also operates a dual legal system where Islamic law applies to Muslims, who make up just over 60 per cent of the population, in personal and family matters, as well as the practice of their religion. All other offences are handled by the civil courts.

Kelantan, seen as the heartland of ethnic Malay Muslim culture, has been ruled by the opposition Parti Islam SeMalaysia (PAS) since 1990.

“The power of parliament and state legislatures are limited by the Federal Constitution and they cannot make any laws they like,” Chief Justice Tengku Maimun Tuan Mai was quoted as saying by Malaysia’s BFM radio as she delivered the findings of the nine-judge panel.

The case was brought in 2022 by Kelantan lawyer Nik Elin Zurina Nik Abdul Rashid and her daughter after the state government passed a new set of laws on Islamic offences.

The two challenged the constitutionality of 18 of the laws arguing that they were beyond the jurisdiction of the state assembly and already covered by parliament.

The Federal Court did not strike down the two other laws and Chief Justice Tengku Maimun stressed that the two women had not brought the case to challenge the position of Islam or the Islamic legal system.